[00:00:01] Speaker 06: Case number 21-1218, Omar Omedkader, Petitioner versus United States. [00:00:07] Speaker 06: Mr. Morrison for the petitioner, Ms. [00:00:09] Speaker 06: Staring for the respondent. [00:00:14] Speaker 01: All right, Mr. Morrison, good morning. [00:00:18] Speaker 03: Judge Henderson, and may it please the court. [00:00:21] Speaker 03: After nearly two decades of litigation, it is long past due to resolve whether the Juvenile Delinquency Act revived [00:00:29] Speaker 03: the Military Commission of jurisdiction over this case. [00:00:33] Speaker 03: There is no impediment for this court to reach that issue. [00:00:37] Speaker 03: In its opinion below, the CMCR held that Mr. Cotter had not waived his statutory right of appeal. [00:00:46] Speaker 03: In September of 2020, the convening authority, in response to the CMCR's order, transmitted the record of trial to the court, which under the regulations constitutes [00:00:58] Speaker 03: the referral of a case for post-trial review. [00:01:03] Speaker 03: After full briefing of the merits, the CMCR dismissed the case in its entirety for lack of subject matter jurisdiction. [00:01:12] Speaker 03: We believe that decision was erroneous, but whatever its merits, that was a final decision that exhausted Mr. Cutter's rights in the military commission system and best jurisdiction in this court. [00:01:25] Speaker 04: I don't really understand your argument [00:01:28] Speaker 04: that transmitting the record refers the case. [00:01:33] Speaker 04: The statute says that the case is automatically referred for review unless there's a waiver or there's a withdrawal of the appeal. [00:01:47] Speaker 04: Well, it's referred, but that referral can be withdrawn. [00:01:52] Speaker 04: I mean, if in a civil or criminal case, [00:01:56] Speaker 04: from our district court, there's a notice of appeal that's filed in a timely fashion. [00:02:02] Speaker 04: How is our jurisdiction impacted by whether or not the clerk sends us the transcripts or sends us the docket? [00:02:15] Speaker 03: Perhaps I misspoke, Your Honor, but I quite agree with you. [00:02:19] Speaker 03: I don't think it affects the CMCR's jurisdiction. [00:02:21] Speaker 03: That attaches automatically. [00:02:23] Speaker 03: It's a matter of law. [00:02:25] Speaker 03: And under a 950C, that occurs when the waiver period expires without a waiver having been filed. [00:02:31] Speaker 03: It's at that, and that's the same scheme that was borrowed from the court, from courts martial. [00:02:38] Speaker 03: And that the court of appeals for the armed forces has held the exact same thing in a court martial proceeding. [00:02:43] Speaker 03: So the convening authority's subsequent transfer of the record can't be jurisdictional because the CMCR already has jurisdiction automatically. [00:02:55] Speaker 03: that's consistent with the regulations that implement the NCA, which define the referral in this context simply means sending the record of trial. [00:03:09] Speaker 03: But that's the point that we were making in our opening brief, is that it is a classic example of a claims processing rule. [00:03:17] Speaker 03: It doesn't confer a jurisdiction on the court because the court already has it. [00:03:20] Speaker 03: So all it does is facilitate the Court of Appeals ability to review the record. [00:03:27] Speaker 03: They can very well can't do it without it. [00:03:29] Speaker 02: I have a fundamental problem with your entire presentation. [00:03:33] Speaker 02: If you could help me out on that. [00:03:35] Speaker 02: Do you have the appendices with you? [00:03:37] Speaker 02: I do. [00:03:40] Speaker 02: Return to page 159, please. [00:03:52] Speaker 02: Yes, sir. [00:03:54] Speaker 02: There, your client waived his right to appellate review in this court voluntarily, correct? [00:04:04] Speaker 02: I'm sorry. [00:04:05] Speaker 02: I'm not seeing, I have the appendix, but I'm not quite sure. [00:04:08] Speaker 02: Oh, I'm sorry. [00:04:09] Speaker 02: I gave you the wrong page number, A71. [00:04:13] Speaker 02: Pardon me. [00:04:20] Speaker 03: That's not correct, Ron. [00:04:21] Speaker 03: Because this is not a waiver of anything. [00:04:24] Speaker 03: This is simply a Form 2330, which is the regulatory provision that implements the statutory waiver rule. [00:04:34] Speaker 03: So in military practice, appellate waivers are governed by statute. [00:04:40] Speaker 03: The parties are not permitted to contract around them. [00:04:44] Speaker 03: And under 950C, a waiver state... 950C doesn't apply. [00:04:50] Speaker 02: And the reason it doesn't apply is that's only talking about waiver of review by the military commission. [00:04:58] Speaker 02: And it hardly, it does not talk about waiver of a right to have a judicial review in our court. [00:05:07] Speaker 02: That's the language of, you know, I've looked at that and 950, 50 C says waiver of right to review. [00:05:19] Speaker 02: But it's talking about appellate review by the U.S. [00:05:23] Speaker 02: Court of Military Commission review. [00:05:26] Speaker 02: And you have to go through a number of hoops, including filing some sort of document that you were talking about within 10 days. [00:05:34] Speaker 02: But this waiver is a waiver of a right to review in our court. [00:05:38] Speaker 02: And the Military Commission statute that you refer to has nothing to do with that. [00:05:43] Speaker 02: That deals with our jurisdiction and he's waived his right to appellate review in our court. [00:05:48] Speaker 02: I don't know how you can read this any other way. [00:05:52] Speaker 03: We do read it another way. [00:05:54] Speaker 03: The very regulation that designates this form as the form you use to waive at CMCR says filing this form does not waive appellate review in this court. [00:06:09] Speaker 02: And that's because I don't see how a military commission regulation could deprive or determine our jurisdiction. [00:06:16] Speaker 03: I don't see explain that to me. [00:06:18] Speaker 03: I don't see how a pre printed form can contradict these signs. [00:06:23] Speaker 02: If this were a guilty plea, and it is. [00:06:26] Speaker 02: Yes, sir. [00:06:27] Speaker 02: And the and the defendant waived his right to appellate review, we would uphold them. [00:06:32] Speaker 02: we would enforce it. [00:06:33] Speaker 02: We would not take judicial review of it. [00:06:36] Speaker 02: I don't see why this is any different. [00:06:38] Speaker 02: This is a military commission for sure, but it's also a guilty plea. [00:06:42] Speaker 02: And the analogy there is, is to my mind, a perfect analogy unless he's got some argument that this was coerced, not voluntary, didn't know what he was doing, but his attorney signed this form too. [00:06:57] Speaker 02: So I don't think there's any room for that argument at all. [00:07:02] Speaker 03: We do not interpret that form to have the effect that you're referring to. [00:07:09] Speaker 03: It isn't. [00:07:10] Speaker 02: It isn't. [00:07:11] Speaker 02: I understand that isn't aware. [00:07:12] Speaker 02: I'm looking for an argument about why you interpret it that way. [00:07:17] Speaker 02: What is it on the face of this form that tells you that it doesn't mean what it says? [00:07:22] Speaker 03: The form isn't even fully executed. [00:07:27] Speaker 03: If you look at the top of the form, it says, I have read the attached action data. [00:07:31] Speaker 03: The form itself presupposes- Turn the page over. [00:07:35] Speaker 02: It's fully executed. [00:07:37] Speaker 02: It's signed by his attorney. [00:07:39] Speaker 02: It's signed by the LTC, whoever that was, John Jackson, name of counsel. [00:07:48] Speaker 03: Under the statute, it isn't effective unless it's submitted to the convening authority. [00:07:54] Speaker 02: We're going around in circles. [00:07:56] Speaker 02: Take a look at the statute. [00:07:58] Speaker 02: The statute does not say anything about the U.S. [00:08:02] Speaker 02: Court of Appeals for the District of Columbia. [00:08:04] Speaker 02: It's talking about within the military system. [00:08:07] Speaker 03: If I may, Your Honor, it also says in paragraph 2F that Cotter would sign and execute the form founded attachment B, which is the form you're referring to. [00:08:19] Speaker 03: within the specified time frame in RMC 1110. [00:08:23] Speaker 03: That is a reference to the statutory time frame. [00:08:28] Speaker 03: So that form was never filed. [00:08:31] Speaker 03: And then the next sentence is, in doing so, in doing what? [00:08:34] Speaker 03: In filing that form and executing it within the time frame in RMC 1110. [00:08:42] Speaker 04: You're at A60 now, right? [00:08:45] Speaker 04: Yes, sir. [00:08:46] Speaker 04: So it's all predicated on, I'm sorry, the pretrial agreement. [00:08:50] Speaker 04: That's what you're referencing now. [00:08:51] Speaker 04: Correct. [00:08:54] Speaker 04: Let me ask you this. [00:08:58] Speaker 04: If the government after the 10 days had had expired and there was no filing of this form, did the government at that point say, um, [00:09:13] Speaker 04: Either we want specific enforcement of the plea agreement or we want to void the plea agreement because he didn't do what he agreed to do. [00:09:22] Speaker 03: Assuming that this is an enforceable provision in a plea, we have argued in our brief that in military practice, anticipatory waivers are not permitted precisely because of the post-action waiver. [00:09:36] Speaker 03: But setting that aside, assuming that you are correct, that this is a breach to which they're entitled to a remedy, they're not entitled to the remedy of dismissal of the appeal. [00:09:45] Speaker 03: They're entitled to the remedy that they bargained for, which is paragraph 5D, which is at 62 and 63. [00:09:54] Speaker 03: The convening authority specifically said, if Cotter doesn't follow through with his promise to waive under the statute, I can cancel the agreement. [00:10:04] Speaker 03: Canceling the agreement would result in vacating the guilty plea and remanding the charges back to the convenience store. [00:10:12] Speaker 04: Is that subsection three that's at the top of A63? [00:10:17] Speaker 04: Is that what that language means? [00:10:19] Speaker 04: Yes, sir. [00:10:21] Speaker 03: And so the government's never asked for that remedy. [00:10:25] Speaker 03: So in 10 years of appellate litigation, and we've gone round and round on the waiver issue, they've never once said, we want what we bargained for. [00:10:34] Speaker 03: Instead, they're asking the court to essentially rewrite the contract and give them something that they didn't part of. [00:10:40] Speaker 03: The only other point that I would make is that if we're correct about the JDA, that would would trump any issue of waiver in any event. [00:10:49] Speaker 03: It is a jurisdictional flaw. [00:10:52] Speaker 03: If the JDA applies, as we say, the military court had no business taking the guilty plea in the first place. [00:10:59] Speaker 02: Excuse me of jurisdiction. [00:11:00] Speaker 02: Why isn't this case moot? [00:11:01] Speaker 02: In the federal system where somebody already has served their sentence, there's a doctrine that it's not the reason is because there could be collateral consequences. [00:11:11] Speaker 02: The individual might commit another offense within the United States. [00:11:15] Speaker 02: And as a result of that, if the conviction is not overturned, the sentence may be higher. [00:11:20] Speaker 02: I don't see any suggestion here. [00:11:22] Speaker 02: Number one, he's not in the [00:11:24] Speaker 02: He's in Canada, as far as I know, and he wouldn't be subject to collateral consequences in the U.S. [00:11:33] Speaker 02: judicial system. [00:11:34] Speaker 02: He's already served his time. [00:11:36] Speaker 02: But why isn't this case moved? [00:11:39] Speaker 03: That question was answered in Hamdan versus United States by this court. [00:11:45] Speaker 03: The same issue was raised, that in that case, he had been repatriated to his home country. [00:11:52] Speaker 03: And that story already wasn't? [00:11:53] Speaker 03: No, that was Hamdan. [00:11:55] Speaker 03: He was in Yemen. [00:11:56] Speaker 02: I thought you were saying, you're not saying Hamdan, you're saying what? [00:12:01] Speaker 02: Yeah, Hamdan. [00:12:04] Speaker 03: And in that case, this court held that there were collateral consequences of any conviction, including a military commission conviction. [00:12:13] Speaker 03: There are also collateral consequences under the plea agreement. [00:12:16] Speaker 03: There are various things he can't do if he's still bound by the plea. [00:12:21] Speaker 02: So if the plea is invalid, [00:12:23] Speaker 02: That's a good point. [00:12:24] Speaker 02: I hadn't considered it. [00:12:26] Speaker 02: I see I'm over time. [00:12:28] Speaker 01: Mr. Morrison, I don't want to pile on, but I want you to turn to our jurisdiction and look at 10 USC 950 G. You have it in front of you because I want to go through them. [00:12:44] Speaker 03: Yes, ma'am. [00:12:46] Speaker 01: OK, as I read 950 GA, there are three conditions precedent [00:12:52] Speaker 01: to our jurisdiction. [00:12:53] Speaker 01: First, we need a final judgment rendered by a military commission. [00:12:58] Speaker 01: We have that. [00:13:00] Speaker 01: Yes, ma'am. [00:13:01] Speaker 01: Okay. [00:13:02] Speaker 01: Then it has to be approved by the convening authority. [00:13:05] Speaker 01: We have that. [00:13:06] Speaker 01: Yes. [00:13:07] Speaker 01: Okay. [00:13:08] Speaker 01: Then the last one is affirmed or set aside as incorrect by the CMCR. [00:13:17] Speaker 01: Now, we do not have that. [00:13:18] Speaker 01: Before you mentioned that we're applicable, [00:13:22] Speaker 01: My reading of the phrase where applicable refers down to the very same 950GC2, that is when a detainee says, I want to go straight from the convening authority to the DC circuit. [00:13:43] Speaker 01: I want to skip the CMCR. [00:13:45] Speaker 01: And that's what where applicable refers to. [00:13:50] Speaker 03: two responses to that your honor this is an open question it's never been addressed by this court what is the meaning of where applicable so if you read where applicable narrowly as you have to mean essentially absent a waiver then you're correct we don't have a merits decision by the cmcr we read it under the plain language of where applicable which simply means relevant [00:14:16] Speaker 03: And because I do not see how a decision of the CMCR can have jurisdictional significance, that's for the very reason you said, the accused can skip CMCR if he wants to. [00:14:28] Speaker 03: So it's not required. [00:14:30] Speaker 03: The only other point that I would make is if you read it that way, then it seems to me that you would have to reverse in Ramana, because there would then be no circumstance under which the CMCR wouldn't have jurisdiction, absent a waiver. [00:14:45] Speaker 01: Well, I believe we should dismiss the appeal. [00:14:47] Speaker 01: I believe we don't have jurisdiction, because we don't have one of the three conditions precedent for us to have jurisdiction. [00:14:55] Speaker 03: Well, but the court can answer any other jurisdictional question that is before it. [00:15:01] Speaker 03: And if the CMCR wrongfully dismissed the appeal because it had subject matter jurisdiction, then it would be appropriate to reverse and remand and tell the CMCR to do his job. [00:15:12] Speaker 03: That's my only point. [00:15:14] Speaker 01: And you're hinging that on a broad definition of where out. [00:15:19] Speaker 01: Is that right? [00:15:21] Speaker 03: Well, I would characterize it as a plain language definition of where applicable. [00:15:26] Speaker 01: OK. [00:15:27] Speaker 01: Thank you. [00:15:27] Speaker 01: We'll give you a couple of minutes. [00:15:30] Speaker 01: Ms. [00:15:30] Speaker 01: Turen? [00:15:33] Speaker 00: It's the fourth. [00:15:40] Speaker 00: We read the term where applicable to a decision by the CMCR where the CMCR determines that its review is not applicable. [00:15:58] Speaker 00: In other words, that it lacks jurisdiction. [00:16:00] Speaker 00: So, for example, if the CMCR had dismissed Cotter's appeal for lack of referral by the convening authority in a way that made it clear [00:16:09] Speaker 00: that it was terminating the case in the military commission system. [00:16:13] Speaker 00: then that would have amounted to a determination by the CMCR that its review is not applicable, and then this court would have jurisdiction. [00:16:21] Speaker 00: But that didn't occur here because the CMCR made clear it still has more work to do before it can make that determination. [00:16:27] Speaker 00: And that's why it remanded the case to the convening authority to require Cotter to ask the convening authority to refer the case, and that if the convening authority refused to require Cotter to file a mandamus petition. [00:16:42] Speaker 00: To answer your question, Judge Wilkins, we understand that the CMCR's jurisdiction under 950 FC is dependent on a referral by the convening authority. [00:16:55] Speaker 00: It says that the CMCR has jurisdiction to review only those cases that are referred to it by the convening authority. [00:17:02] Speaker 00: And the Military Commissions Act and the rules for military commissions don't explain what should happen here where the convening authority refuses to do so. [00:17:12] Speaker 04: We think that the Military Commissions Act, the rules, the CMCR rules, the regulations for trial by Military Commission. [00:17:25] Speaker 04: I've looked at all four of those, and there's not one reference at all to there being a need for any sort of specific referral by the convening authority. [00:17:41] Speaker 04: No piece of paper [00:17:42] Speaker 04: There's no form that exists for the convening authority to submit. [00:17:51] Speaker 04: And the statute says automatically refer. [00:17:55] Speaker 04: So why should I conclude, given all of that, that jurisdiction in CMCR is dependent at all on any action by the convening authority? [00:18:08] Speaker 00: Because Section 950 FC provides that the CMCR has jurisdiction to review only those cases referred to it by the convening authority. [00:18:17] Speaker 00: And I agree with you that the Military Commissions Act and the rules for military commissions don't explain what a referral is. [00:18:24] Speaker 00: But we understand a referral to refer to the act of the convening authority formally just transferring the record of trial to the CMCR and it is [00:18:33] Speaker 00: non-discretionary statutory ministerial duty whose sole function is meant to signal to the CMCR that the convening authority has finished conducting post-trial review, but it's not meant to confer any discretionary authority on the convening authority. [00:18:48] Speaker 00: So if this court dismisses the case and remands the case to the CMCR, [00:18:54] Speaker 00: to require Cotter to satisfy those exhaustion requirements, the government's position will be that the CMCR should issue a writ of mandamus compelling the convening authority to refer the case. [00:19:06] Speaker 02: The government's position on page 25 of your brief is that the waiver form that I referred to earlier actually waived his right to have judicial review in this court. [00:19:21] Speaker 00: Yes, Your Honor. [00:19:23] Speaker 00: And we agree with you that the requirement that the defendant file the appellate waiver with the convening authority within 10 days notice of the convening authority's action applies only to appellate waivers in the CMCR under section 950C. [00:19:39] Speaker 02: But that really doesn't matter. [00:19:40] Speaker 02: I mean, whether he filed it within 10 days or 15 days or five days, it's of no consequence because the only consequence would be to the extent that that [00:19:53] Speaker 02: affects our right to or his right to judicial review. [00:19:57] Speaker 02: But he's already waived judicial review. [00:19:59] Speaker 00: I agree. [00:20:00] Speaker 00: In his pretrial agreement, he agreed to waive his right to appeal his conviction, detention and sentence in any judicial form or proceeding on any ground with two narrow exceptions that don't apply here. [00:20:11] Speaker 00: And then as he pointed out in the military commission form that he signed waiving his right to appellate review, he said that he understood his case would not be reviewed by [00:20:20] Speaker 00: the CNCR, the DC Circuit, or the Supreme Court. [00:20:23] Speaker 00: And then in a colloquy with the military judge on page 305 of the appendix, he affirmed that he was waiving his right to appellate review. [00:20:32] Speaker 00: So he has waived that right three times, and it includes waiving his right to appeal in this court. [00:20:40] Speaker 01: Ms. [00:20:40] Speaker 01: Taron, we may not be able to reach it here, but I'd like to know how you read 10-950-GA in relation to the [00:20:52] Speaker 01: the three conditions precedent, as I call them. [00:20:56] Speaker 01: In particular, whether you agree that the opt-out of where applicable applies in that very same section, 950-G, [00:21:12] Speaker 01: to C2, that is where the detainee says I want to jump over the CMCR and go directly to the DC Circuit. [00:21:20] Speaker 00: Yes, Your Honor, we agree with that and that the defendant could waive his right to appeal in the CMCR and then file a petition for review in the DC Circuit. [00:21:29] Speaker 00: That's an option available to a defendant, but here the defendant waives his right to appeal in both. [00:21:36] Speaker 01: But how do you read where applicable to apply to any [00:21:42] Speaker 01: has isolated this seat too. [00:21:45] Speaker 00: But if yes, that that would be a condition precedent to this jurisdiction, a condition to this court's jurisdiction. [00:21:56] Speaker 05: Okay. [00:21:59] Speaker 04: But I'm just trying to make sure I understand your answer to judge Henderson's last question. [00:22:06] Speaker 04: Um, you saying that where applicable [00:22:14] Speaker 04: Does any other work other than the instance where the defendant files a waiver of review before the CMCR? [00:22:29] Speaker 00: It could also apply where the defendant waives his right to appellate review in the CMCR or where the CMCR determines its review is not applicable because it has no subject matter jurisdiction. [00:22:42] Speaker 00: like with the CMCR. [00:22:44] Speaker 00: Well, the CMCR here dismissed Cotter's appeal for lack of referral, but that did not amount to a determination that its review is not applicable because it wasn't a final decision. [00:22:56] Speaker 04: And why wasn't it final? [00:22:58] Speaker 00: Because the CMCR made clear that it still has more work to do before it can make that determination. [00:23:03] Speaker 04: And Attias versus Care First, a case cited by- What work does the CMCR says it has to do? [00:23:09] Speaker 00: It said it was remanding the case. [00:23:12] Speaker 00: to require the convening authority to determine in the first instance whether to refer the case, and that if the convening authority refused to refer the case, then the CMCR would entertain a petition for writ of mandamus seeking to compel the convening authority to refer the case so that the CMCR could consider the question whether the appellate waiver was valid, and if not, then to address the merits of Cotter's appeal. [00:23:37] Speaker 02: What's the date of his guilty plea? [00:23:39] Speaker 00: October 25th, 2010. [00:23:42] Speaker 00: October 25th, 2010. [00:23:48] Speaker 02: I may have misunderstood, uh, his attorney's argument that this, uh, waiver on pages a 71 to a 72 was executed before the guilty. [00:24:02] Speaker 02: But that's dated October. [00:24:04] Speaker 02: The waivers dated October 30th and the guilty plea was again, what was it? [00:24:10] Speaker 02: October? [00:24:10] Speaker 02: What? [00:24:11] Speaker 00: 20. [00:24:11] Speaker 00: He is guilty plea was October 25th. [00:24:14] Speaker 00: He signed the form on October 30th, but he was sentenced after his guilty. [00:24:19] Speaker 00: Yes, your honor. [00:24:21] Speaker 04: So tell me, I guess I'm having trouble understanding how if the if the C and C are made a decision [00:24:41] Speaker 04: that it did not have jurisdiction. [00:24:47] Speaker 04: I'm having trouble understanding why that in and of itself isn't a final decision. [00:24:54] Speaker 00: Because the CMCR wanted to consider whether it should compel the convening authority to refer the case, and if he had referred the case, and if the CMCR issues a rudimentary name is compelling him to refer the case, then the CMCR would have jurisdiction under 950 FC. [00:25:11] Speaker 00: that provision that says that the CMCR has jurisdiction only to review cases referred to it by the convening authority. [00:25:19] Speaker 00: That's how the CMCR construed that provision as requiring a referral by the convening authority. [00:25:24] Speaker 00: And so it wanted to still consider the question whether it would have jurisdiction if it compelled the convening authority to perform this non-discretionary ministerial statutory duty of referral. [00:25:41] Speaker 04: I guess what confuses me about all of this mean that the systems are different, so the analogies don't completely work, but it just, I don't understand why where the statute says clearly and unambiguously that there is an automatic referral and there shall be a transmittal of the record, et cetera, et cetera, et cetera. [00:26:11] Speaker 04: why the CMCR says, well, we can't, our hands are tied. [00:26:19] Speaker 04: You have to file a mandamus petition. [00:26:23] Speaker 04: If something like that were to happen in this court and then kind of an analogous circumstance where a notice of appeal had been filed, but we didn't have the transcript, we wouldn't cause a party to file a mandamus petition to get it. [00:26:39] Speaker 04: We would just say, give it to them. [00:26:41] Speaker 00: Right. [00:26:41] Speaker 00: And in Article 3 courts, as you mentioned, the courts have jurisdiction to review the decisions of the district courts that are final. [00:26:49] Speaker 00: But the CMCR's jurisdiction is wholly unique. [00:26:53] Speaker 00: Even in the court martial system, the Uniform Code of Military Justice has been amended, and it no longer predicates service criminal courts of appeals jurisdiction on a referral from a judge advocate general. [00:27:07] Speaker 00: CMCR explained that under the Military Commissions Act, under Section 950 FC, there is this language that says that it has jurisdiction only over cases referred to it by the convening authority. [00:27:19] Speaker 00: But we think that the convening authority is required to refer this case to the CMCR, because as you pointed out, he's required to refer cases in which the defendant has been convicted and where the defendant seeks review. [00:27:34] Speaker 04: Thank you. [00:27:36] Speaker 01: All right, if there are no more questions, thank you. [00:27:39] Speaker 01: Mr. Morrison, would you like a minute or two? [00:27:46] Speaker 03: Just very briefly, I do not understand how you can argue that mandamus is a type of an appeal that has to be exhausted under 950G. [00:27:55] Speaker 03: That just seems like apples and oranges. [00:27:59] Speaker 03: Mandamus isn't an appeal. [00:28:00] Speaker 03: It's separate from and collateral. [00:28:03] Speaker 03: So I don't think that's an oblique reference to filing mandamus. [00:28:06] Speaker 03: Also, as this court held in Ray Stone, if we had done what the government suggested in their brief, we would have been out of court altogether. [00:28:15] Speaker 03: Because they said you shouldn't file a petition for review. [00:28:17] Speaker 03: You should first litigate a mandamus petition. [00:28:20] Speaker 03: But then the 20-day clock would have run. [00:28:22] Speaker 03: And under Stone, we're not permitted to use mandamus to get a second bite at the apple. [00:28:27] Speaker 03: So it puts us in an impossible situation. [00:28:30] Speaker 03: On the waiver question, if [00:28:32] Speaker 03: we are construing that waiver form as just an ordinary form of waiver and a plea agreement, as you might see in a, in a, uh, in a federal civilian federal case. [00:28:42] Speaker 03: And it's specific. [00:28:44] Speaker 03: It's not necessarily, it doesn't necessarily waive every issue. [00:28:48] Speaker 03: That's not jurisdictional. [00:28:49] Speaker 03: That's not a jurisdictional waiver. [00:28:51] Speaker 03: Uh, and none of the categories of offenses or excuse me, claims that we've made would fall within a general waiver. [00:29:00] Speaker 03: based on an unconditional guilty plea. [00:29:02] Speaker 03: We've said, for example, that his pleas are constitutionally involuntary and unknowing because of the fundamental misinstruction about the law. [00:29:14] Speaker 03: We may be right, we may be wrong, but that's not waived by the guilty plea itself, including the waiver, because you can always invalidate the plea. [00:29:22] Speaker 03: In addition, all of our claims fall within, well, other than the ones I just mentioned, the remaining claims, [00:29:29] Speaker 03: constitutional and statutory claims fall within the rules 905 and 907, which govern this proceeding. [00:29:36] Speaker 03: And they make those claims unwaverable, or excuse me, non-waverable. [00:29:41] Speaker 03: That's the correct term. [00:29:44] Speaker 03: And then finally, I would only point out that the waiver provision in 2F also says that he, Cotter, agrees to waive to the extent permitted by law. [00:29:54] Speaker 03: So it seems to me that that conditions the waiver so that, for example, these non-wavable issues would be preserved. [00:30:02] Speaker 03: Thank you. [00:30:03] Speaker 01: All right. [00:30:04] Speaker 01: Thank you.